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2013 DIGILAW 462 (KER)

Johnson v. District Collector, Thrissur

2013-06-10

P.R.RAMACHANDRA MENON

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JUDGMENT : P.R. RAMACHANDRA MENON, J. 1. Seizure of the vehicles belonging to the petitioners, alleging violation of the relevant provisions of Kerala Protection of River Banks and Regulation of Remval of Sand Act, 2001, is the subject matter of challenge in this writ petition. Particulars of the petitioners and their vehicles are given below in a tabulated form, for convenience of reference. Name of Owner Vehicle Reg. No. Johnson KL 8AZ 819 M.S. Babu KL 7P 5290 Akbar K.A. Kl 7R 1809 K.S. Musthaffa KL 8P 6514 Rajesh.K KL 2R 9069 Timmy Benny KL 8R 5448 Basheer KL 7D 2721 Beevikutty KL 8H 3112 2. According to the petitioners, they have not committed any offence under the Act or Rules and that the vehicles had actually not proceeded into the Kadavu but had gone to the banks of the river, only for taking 'U' turn, as the width of the road was not sufficient enough so as to have it taken back at the relevant spot. The actual position in this regard is revealed by Exts.P10 and P11 reports submitted by the concerned Tahsildar. It is also asserted that no sand was actually loaded in any of the vehicles and this fact is revealed from Ext.P9 mahazar as well. The learned counsel for the petitioners seeks for a direction to release the vehicles, pointing out that the petitioners were issued revalidated sand passes as borne by Ext.P1 to P8 by the concerned authority. 3. Heard the learned Government Pleader as well, who submits that the vehicles had actually taken to the concerned Kadavu and it was with intent to have illegal excavation and transportation of river sand. The time of interception and the factual background is revealed from Ext.P9 Seizure Mahazar. The learned Government Pleader further points out that, by virtue of the mandate under Section 12(6) and Section 15(2), the scheme of the statute does not contemplate any vehicles to be taken to the Kadavu in contravention of the said provisions. As such, even if the version of the petitioners is to be accepted, that the vehicles were taken for the purpose of taking a 'U' turn, such course is not permissible under the Act. As such, even if the version of the petitioners is to be accepted, that the vehicles were taken for the purpose of taking a 'U' turn, such course is not permissible under the Act. The learned Government Pleader also points out that, when the seizure was effected, altogether 'eight' vehicles belonging to the petitioners were available at the spot and there was no need or necessity for taking all the said vehicles to the Kadavu, merely for taking 'U' turn at the same time. 4. The learned counsel for the petitioners submits with reference to Rule 17(m) and (n) that it is for the concerned local authorities to install necessary pillars/check posts to prevent the entry of the vehicles which has not been effected by the authorities and there was no complaint as well from the local authorities. But, merely for the reason that there is a failure or lapse on the part of the local authority in installing pillars or check posts, in so far as there is no challenge against the statutory prescription under Section 12(6) and Section 15(2), the petitioners cannot be heard to say that they are justified in taking the vehicles to the Kadavu in contravention of the statutory provision. 5. The further question to be considered in this case is whether the 3rd respondent can proceed with the "confiscation proceedings" as contemplated under Section 23 of the Act. The said provision states that whoever transports sand without complying with the provisions of this Act shall be liable to be punished and the vehicle used for the transaction is liable for seizure by the police or revenue officials. Admittedly, there was no sand at the time of seizure and as such, there is no question of 'transportation' as well. This being the position, there cannot be any 'confiscation' of the vehicles and as such, they are to be released to the petitioners. But by virtue of the mandate under Section 20 of the Act, whoever contravenes any of the provisions of the Act or Rules thereunder, shall be proceeded with steps for prosecution and punishment as prescribed. This is more so, in view of the Law declared by this Court as per the decision reported in 2012 (2) KLT 547 , Surjith Singh v. State of Kerala. 6. This is more so, in view of the Law declared by this Court as per the decision reported in 2012 (2) KLT 547 , Surjith Singh v. State of Kerala. 6. In the said circumstance, there will be a direction to release the vehicles to the petitioners forthwith, on executing a bond/undertaking to produce the vehicles as and when required and also on undertaking that the petitioners will not pursue any activity so as to cause the value of the vehicles diminished till finalization of the proceedings. It is for the 4th respondent to report the matter to the concerned Magistrate's Court having jurisdiction over area in respect of the offence stated as committed by the petitioners and to proceed with further steps. Writ petition is disposed of.